Court Strikes Blow to School Choice in Florida

Decision Forces Hundreds of Students to Return to or Stay in Failing Schools

Washington, D.C. - Mere weeks before the start of the school year, a state judge in Tallahassee put the brakes on a statewide school choice program designed to save children from failing public schools in Florida.

The Institute for Justice, a public interest law firm that represents Pensacola families participating in Florida’s Opportunity Scholarship program, vowed to appeal the decision and to ask the judge to stay his decision so as not to force Pensacola children back into failing schools. Unless the decision is stayed, it will also mean that hundreds of newly eligible children in Miami-Dade, Palm Beach and elsewhere will be forbidden from using the scholarship program to escape from F-rated schools in those districts.

“Families across Florida are depending on this program as the only means to save their children from chronically failing public schools,” said Clark Neily, senior attorney with the Institute for Justice. “To pull the rug out from under students already in the program and the hundreds more joining this fall is bad policy and bad law.”

The court’s opinion failed to address one of the central arguments in favor of the Opportunity Scholarship program, namely, that interpreting Florida’s state constitution to require the exclusion of religious schools not only violates the federal Constitution’s ban on viewpoint discrimination but interferes with the First Amendment right to the free exercise of religion. A federal appellate court addressed the same question weeks ago and reached a contrary result when applying U.S. Supreme Court precedent that is binding on Florida state courts.

“It is remarkable that the judge never even addresses the question of viewpoint discrimination and free exercise of religion under the U.S. Constitution,” Neily said. “Those issues represent the cutting edge of the law right now, and the court’s silence is truly deafening.”

Besides failing to address the federal constitutional issues presented by this case, the trial judge did not explain how he would distinguish Opportunity Scholarship from the many other Florida programs in which state money ultimately ends up at religious institutions, including higher education scholarships and state health programs. Should the reasoning in today’s decision be affirmed, the future of such programs will be in grave doubt.

Neither Florida’s corporate tax credit program for educational scholarships nor the McKay Scholarships for disabled students will be affected by today’s ruling.

The Florida decision comes less than two months after the U.S. Supreme Court upheld a similar program in Cleveland.